Adults with Incapacity (Scotland) Act 2000 THE SCOTTISH COURT SERVICE OFFICE OF THE PUBLIC GUARDIAN Guidance Notes for Registration of Powers of Attorney 1
Adults with Incapacity (Scotland) Act 2000 INDEX 1. Powers of Attorney Page 3 2. Registration of a Power of Attorney Page 5 3. Joint / Substitute Attorney Page 7 4. Complaints Page 7 5. Change in Circumstances Page 8 6. The Public Guardian Page 8 7. Explanation of Terms Page 9 8. List of Prescribed People Page 10 9. Further Information and Useful Contacts Page 10 2
GUIDANCE NOTES FOR REGISTRATION OF POWERS OF ATTORNEY 1. Powers of Attorney 1.1 What is a power of attorney? A power of attorney is authority given by an individual (the granter) to another person or persons (the attorney) to manage aspects of his/her affairs. This could relate to financial and/or property matters and/or the granter s personal welfare. In the case of financial and/or property matters the authority may be given with the intention of taking effect or continuing after the granter s incapacity. Authority over personal welfare can only be exercised after the granter s incapacity. 1.2 Who can advise me on preparing a power of attorney? As the power of attorney gives authority to another person to act on your behalf, it may be in your best interests to seek professional advice from, e.g. a solicitor or accountant or other suitably qualified person. 1.3 Can anyone prepare a power of attorney document? Yes, providing he or she fully understands the nature of the document and its content. 1.4 Can a power of attorney take the form of an oral request? As the power of attorney may contain complicated matters it is advisable that the powers are contained in a written document. You should note that the Public Guardian can only register written documents. 1.5How long does a power of attorney last for? Powers of attorney over property and financial affairs will cease on the granter s incapacity unless the granter has expressly provided for a continuing power. Continuing powers of attorney and welfare powers will last indefinitely. However they will cease to have effect in the following circumstances: - The powers have been revoked by a court order. The granter has died. When the attorney and granter are married, on a decree of separation, divorce or nullity of marriage unless the power of attorney states otherwise. 3
Adults with Incapacity (Scotland) Act 2000 1.6 Can I name anyone as an attorney to look after my affairs? Yes, anyone who is prepared to act on your behalf, e.g. family member, friend or neighbour, or a professional person e.g. solicitor, accountant, doctor. 1.7 Can an attorney claim expenses or payment for acting? This would be a matter strictly between the parties concerned. An attorney may not be able to claim expenses or payment unless the power of attorney contains provision for this. 1.8 What is a continuing power of attorney? A continuing power of attorney is authority granted by a person to another person(s) to manage their financial and/or property affairs when they lose capacity to deal with these matters. A continuing attorney is the person appointed in the power of attorney. 1.9 What is a welfare power of attorney? A welfare power of attorney is authority granted by a person to another person(s) to manage their personal welfare when they lose capacity to deal with these matters. A welfare attorney is the person appointed in the power of attorney. 1.10 Can I appoint the same person to be a continuing and welfare attorney? Yes, as long as the person is prepared to act as your attorney. 1.11 Do I need to use two separate documents to appoint a continuing and welfare attorney? No. The granting of continuing and/or welfare powers can be contained within the power of attorney document. The attorney appointed will only become the continuing and/or welfare attorney in the event of the granter becoming incapable as mentioned before. 4
GUIDANCE NOTES FOR REGISTRATION OF POWERS OF ATTORNEY 1.12 What is required to create a continuing / welfare power of attorney? A written document is needed which sets out the precise powers which the granter wishes the attorney to exercise. The document must be signed by the granter. It should also include a statement that the power be a continuing or welfare in the event of the granter becoming incapable. The document must incorporate a certificate by a solicitor or other prescribed person (further detail at section 8 ) stating: That he/she has interviewed the granter immediately prior to the signing of the document; That he/she is satisfied, because of their own knowledge of the granter or having consulted other named persons who know the granter, that the granter fully understands the nature of the powers being given and the extent of them; and That he/she has no reason to believe that the granter is acting under any influence or any other reason which should prevent the powers from being given. 2. Registration of a Power of Attorney 2.1 Why does the power of attorney need to be registered? The Adults with Incapacity (Scotland) Act 2000 introduced a requirement that any power of attorney made on or after 2 April 2001, which is to continue in the event of the granter becoming incapable of decisions about the matter to which the power of attorney relates, has to be registered with the Public Guardian. 2.2 How do I register a power of attorney? You will require to complete a registration form which is available from the Office of the Public Guardian. You can also find and print a copy of the form on the Public Guardian s web site. Thereafter the original power of attorney document and registration form should be sent to the 5
Adults with Incapacity (Scotland) Act 2000 Office of the Public Guardian. All addresses can be found at the end of this leaflet. 2.3 On receipt of the power of attorney does the Public Guardian take any action? The Public Guardian will check the application and issue a copy of the document along with a certificate of registration to the granter, and if requested, to the two specified individuals named in the power of attorney. Where a welfare attorney has been appointed a copy of the document will be sent to the Mental Welfare Commission. 2.4 Are there any circumstances that prevent a continuing / welfare power of attorney being registered? Yes. The power of attorney will not be registered when: - There is a statement included in the power of attorney that it shall not be registered until such time as a specific date or event has passed and the Public Guardian is not satisfied that such a date or event has passed; or The Public Guardian is not satisfied that the attorney named is prepared to carry out his duties. 2.5Does the Public Guardian charge a fee for registration of power of attorneys? There will be a fee payable to the Public Guardian for registration purposes. Whoever sends the forms in will receive a fee advice note detailing payment methods once registration is completed. 2.6 Who should keep the certificate of registration? The certificate should be kept by the attorney in a safe place. 6
GUIDANCE NOTES FOR REGISTRATION OF POWERS OF ATTORNEY 3. Joint / Substitute Attorneys 3.1 Can I appoint a joint attorney to look after my affairs? Yes. You can appoint as many attorneys as you require in the original power of attorney document. 3.2 The attorney has decided to resign. Will I be able to appoint a substitute attorney? A substitute attorney can only be appointed when he/she is already mentioned in the power of attorney document. Resignation will take effect from the date the Public Guardian receives notification from the attorney and confirmation from the substitute that he/she is willing to act. However, where there is no mention of a substitute attorney and you are still capable of doing so, you will have to create a new power of attorney document. 4. Complaints If someone is concerned with regard to the manner in which an attorney, appointed on the financial and/or property affairs of an adult is conducting these affairs, then a complaint can be made to the Public Guardian whose address is shown at page 11. The complaint should be made in writing clearly setting out the reasons for the complaint. On receipt of the complaint the Public Guardian will issue an acknowledgement. All complaints will be investigated after which the Public Guardian will determine what action if any is to be taken. This decision will be intimated to all the parties concerned. It is open to the Public Guardian to make an application to the court seeking an order from the sheriff ordaining that the continuing attorney shall be subject to the supervision of the Public Guardian; or ordaining the continuing attorney to submit accounts to the Public Guardian; or revoking any powers of the continuing attorney or the appointment of an attorney. 7
Adults with Incapacity (Scotland) Act 2000 5. Change in Circumstances 5.1 What happens if the granter or attorney moves house? When the power of attorney has been registered, the attorney is responsible for notifying the Public Guardian of any change of either the grantor or attorney s address. 5.2 The attorney has decided to resign from his/her duties. What should he/she do? The attorney should write to the granter, the granter s primary carer and the Public Guardian with details of their intentions to resign. If the attorney is a welfare attorney they will also have to notify the local authority if they are supervising the attorney. If there is a joint attorney the Public Guardian will ascertain that this person is willing to continue acting without the other attorney. Resignation will take effect 28 days from the date the Public Guardian receives notification. However, if any joint attorney is willing to continue to act or any substitute attorney is willing to act, resignation will be effective as soon as the joint or substitute attorney confirm this to the Public Guardian. 6. The Public Guardian 6.1 Who exactly is the Public Guardian? The Public Guardian is the Accountant of Court who is an officer of the Scottish Court Service. 6.2 What are his responsibilities regarding continuing / welfare powers of attorney? The Public Guardian s responsibilities are to: Maintain registers of all documents relating to continuing/welfare attorneys for inspection by members of the public. Provide advice and guidance to continuing attorneys. 8
GUIDANCE NOTES FOR REGISTRATION OF POWERS OF ATTORNEY When instructed by a sheriff, supervise and investigate the continuing attorney and audit any accounts submitted. Liaise with the Mental Welfare Commission and local authority where it is necessary to do so. The Public Guardian may also carry out an investigation on receipt of a written complaint or concern regarding the exercise of functions relating to the property or financial affairs of a granter in relation to continuing attorneys. 7. Explanation of Terms Used Adult with Incapacity Attorney Power of Attorney Continuing Attorney Welfare Attorney Granter Relates to an adult who cannot make a legal decision relating to property, financial affairs or personal welfare due to mental disorder or inability to communicate because of a physical disability A person empowered to act for another person Is a legal document drawn up by a person who is willing to grant authority to another person(s) to manage their affairs. A person granted authority to look after the financial and property matters of an adult after they are deemed incapable to do so themselves due to a mental disorder, or inability to communicate because of a physical disability A person granted authority to look after the personal welfare of an adult who is incapable of doing so for themself. A person who grants authority to another person to manage their affairs. 9
Adults with Incapacity (Scotland) Act 2000 8. List of Prescribed People This will include solicitors, advocates (legal) and medical practitioners. A fuller list may be obtained from the Public Guardian 9. Further Information and Useful Contacts Further guidance regarding powers of attorney can be found in the Codes of Practice issued by the Scottish Executive, Justice Department, Civil Law Division, Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD. Other useful contacts: Citizens Advice Bureau Address in your local telephone book or from Citizens Advice Scotland 0131 667 0156 Law Society of Scotland 26 Drumsheugh Gardens Edinburgh 0131 226 7411 Institute of Chartered Accountants of Scotland 27 Queen Street Edinburgh 0131 225 5673 10
GUIDANCE NOTES FOR REGISTRATION OF POWERS OF ATTORNEY PLEASE SEND ALL COMPLETED CONTINUING / WELFARE POWER OF ATTORNEY DOCUMENTS FOR REGISTRATION TO: - The Office of the Public Guardian Hadrian House Callendar Business Park Callendar Road Falkirk FK1 1XR Tel: 01324 678300 Fax: 01324 678301 E-Mail: opg@scotcourts.gov.uk Website: www.scotcourts.gov.uk The Office of the Public Guardian is open to the public from 09.00-16.30hrs Monday to Friday This leaflet is available free of charge in braille, audiotape large print format, Urdu, Punjabi, Bengali, Arabic, Chinese and Gaelic by phoning the above telephone number. 11
Designed and produced by Astron B18529 3-2001 12